Cincinnati Ins. Co. v. Gwinnett Furniture Mart, Inc.

• Decision Date: 22 April 1976
• Docket Number: 52061,No. 3,Nos. 52060,s. 52060,3
• Citation: 138 Ga.App. 444,226 S.E.2d 283
• Parties: The CINCINNATI INSURANCE COMPANY v. GWINNETT FURNITURE MART, INC. GWINNETT FURNITURE MART, INC. v. The CINCINNATI INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 283

226 S.E.2d 283

138 Ga.App. 444

The CINCINNATI INSURANCE COMPANY v. GWINNETT FURNITURE MART, INC.

GWINNETT FURNITURE MART, INC. v. The CINCINNATI INSURANCE COMPANY.

Nos. 52060, 52061.

Court of Appeals of Georgia, Division No. 3.

April 22, 1976.

Savell, Williams, Cox & Angel, Andrew Robert Greene, Atlanta, for appellant.

Rubin, Appel & Strickland, Martin H. Rubin, Atlanta, for appellee.

DEEN, Presiding Judge.

Statement of Fact. The appellee furniture store suffered the theft of an air conditioning unit the purpose of which was to cool the interior of its store. The unit sat on a concrete slab outside the building and was connected with the interior by an electrical line supplying power to the equipment and a line from the equipment into the building supplying the cooling element, both of which lines were served at the time the air conditioner was removed. The insured made a claim, and the adjuster to which appellant turned it over, and who was authorized to act for it 'insofar as plaintiff's claim comes within the scope of his insurance policy' issued and delivered a draft covering the agreed value of the loss; however, the insurer refused to honor the draft, contending the loss was not covered by the policy. Both sides moved for summary judgment. The trial court granted summary judgment to the plaintiff and the insurer appeals. He refused to grant attorney fees and penalty for bad faith, from which the insured cross appeals.

Policy Provisions. This is a multicoverage policy containing a number of divisions. The coverages purchased include (1) fire and allied; (2) general liability; (6) plate glass and (7) neon signs. We are interested only in (1) which includes (A) fire and lightning; (B) extended coverage; (C) vandalism and malicious mischief and (D) dealer's comprehensive, and of these subdivisions only (A) and (D) are here involved. Section (1) (fire and allied) is entitled 'Physical Damage to Property.' 'Property damage' is defined as 'physical injury to or destruction of tangible property which occurs during the policy period.' The stated coverages are 'Buildings as described in the declarations, including equipment, yard fixtures and personal property of the insured used in the maintenance of service of the buildings (including the extinguishing apparatus, floor and window coverings, refrigerating, air conditioning and outdoor equipment) while at the location described' and 'Contents-Business personal property of the insured used in the conduct of the business.' One of the extensions of coverage is for 'consequential loss to personal property covered hereunder caused by change of temperature or humidity resulting from damage by the perils insured against to . . . air conditioning . . . (including their connections and supply or transmission lines and pipes) when situated on the described premises.'

Only division (D), the dealer's comprehensive endorsement, insures against theft. The property it covers is 'personal property usual to the conduct of the insured's business, consisting principally of Furniture 'Store.' This, it is obvious, is the same property as the 'Contents-Business and personal property of the insured used in the conduct of the business' coverage. Nowhere is any distinction in meaning between the words 'building' 'contents,' 'personal property,' 'equipment,' etc. made as between coverages (A) and (D) so the words must be assumed to mean the same throughout except as modified by stated conclusions. As to the insurance afforded on the property covered by (D) there is Premises Damage provision as follows: 'The company will also pay for the damage (except by fire) to that part of the building occupied by the insured and to equipment therein directly resulting from theft . . . but in no event shall this section apply to glass (excepting structural glass) or to any lettering or ornamentation thereon.'

Rules of Construction. It is the function of the court to construe the contract as written and not to make a new contract for the parties. Pilot Life Ins. Co. v. Morgan, 94 Ga.App. 394, 94 S.E.2d 765. 'Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider endorsement.' Code § 56-2419. While insurance is a matter of contract, not sympathy (Duckett v. Piedmont Sou. Life Ins. Co., 118 Ga.App. 3, 162 S.E.2d 531), the policy is to be construed liberally in favor of the object to be accomplished (Moore v. Allstate Ins. Co., 108 Ga.App. 60, 131 S.E.2d 83; Raynor v. American Heritage Life Ins. Co., 123 Ga.App. 247, 180 S.E.2d 248; Sovereign Camp. W. O. W. v. Everett, 58 Ga.App. 642, 199 S.E. 660) both because the subject matter affects the public interest (American Indem. Co. v. Davis, D.C.Ga., 155 F.Supp. 47) and because, if the construction is doubtful, that...